Elder Law

03/24/2017

Tennessee has now joined a number of states in creating laws and coalitions to protect their seniors from the growing problems of elder abuse.

Legislation has been introduced by lawmakers in Tennessee that recognizes the growing problem of elder abuse. According to Nashville News Channel 5’s report, “New Legislation Targets Elder Abuse,” Senate Bills 1192, 1230 and 1267 were created to help protect against physical, mental and financial abuse. They would also increase penalties for people who commit such crimes.

The bills would add more criminal penalties for those found guilty of elderly abuse. They would also increase communication between government agencies to raise awareness of scams that target the elderly and ease restrictions on financial confidentiality laws, which permit family members to report problems.

The bills are from the Elderly and Vulnerable Adult Abuse Task Force.

The Tennessee Bankers Association noted that the new laws would also give financial institutions additional authority to act, if an employee thought that a customer was being taken advantage of financially.

“Bankers are often on the front lines. We see our customers being scammed and under current law, there isn’t really anything we can do,” said Tim Amos, Executive Vice President of the Tennessee Bankers Association. "To have a process to allow us to ask you to pause the transaction or wait until tomorrow or until you consult with family, is a pretty big step.”

The National Council on Aging reports that about 10% of Americans who are age 60 and older have experienced some type of elder abuse. The lawmakers in Tennessee found studies over the past 10 years showing that the reported cases of assault and financial exploitation of vulnerable adults has gone up by at least 20%. It is estimated that as many as one in 23 cases of elder abuse go unreported.

The 2010 census found that the portion of the U.S. population over age 65 is 13.4% of the total. The fastest growing segment includes those who are age 85 and older.

Lawmakers expect the bills to receive bipartisan support as the bills work their way through the state’s legislative process. The bills will be sent to committees in the coming weeks.

03/06/2017

Caring for a loved one with Alzheimer’s disease, puts families through an emotional and financial struggle that many are just not equipped to deal with.

The number of families who will be involved with care of a senior with Alzheimer’s or another type of dementia is staggering. In 2016, more than five million Americans were living with the debilitating disease, for which there is no cure and only limited treatment.

WTTW.com’s recent article, “For Caregivers, Dealing with Dementia Can Be Tough Reality,” explains that for loved ones, the reality of managing the care and financial affairs of a senior with diminished mental capacity can be an extremely stressful. Unfortunately, tales of exploitation and abuse are not uncommon.

Doctors say that unusual behavior can be an early sign that a person may be suffering from some form of mental decline or impairment. Examples of this are getting lost while driving in a familiar area or wearing dirty clothes when the senior has previously been meticulous about his or her dress. The symptoms of Alzheimer’s become more apparent as time goes on. This can often be a source of discord among family members, because it’s painful to acknowledge that parents are declining and are not behaving as they used to. This denial sometimes creates tension.

With the cost of care and the burden it frequently puts on the family, communication and preparation are critical. Advance planning can’t be stressed enough, since roughly 60% of family caretakers use a portion of their own funds to cover the cost of care.

Caregiver abuse is also common in financial abuse cases where the typical scenario is an older adult left one-on-one with a 24/7 caregiver. Women sometimes will take advantage of elderly men in what develops into an intimate relationship.

Often the caregiver may encourage the senior to sign documents to transfer funds or property. Any kind of assets that can be transferred through only one signature, are particularly vulnerable to financial elder abuse. Family members need to remain in close proximity with the senior to protect them from exploitation by paid caregivers. There are also many cases of financial elder abuse by family members. A group effort from the family with a great deal of communication may be helpful in keeping everyone accountable.

02/07/2017

One of the hardest pieces of the financial puzzle for Special Needs Families is balancing parent’s retirement planning while ensuring that the Special Needs family member gets the care they need.

Planning for life after the parents of a Special Needs child pass away, must include ensuring that the individual retains their eligibility for government assistance. This requires an experienced estate attorney who is familiar with government program requirements, ABLE accounts and retirement planning.

Morningstar’s recent article, “Retirement Planning for Special-Needs Families,” explains that the need is growing. One in every five Americans has a disability, and 20 million families have at least one family member who has a disability, says the National Disability Institute. The costs can also be extremely high, with the lifetime cost of caring for a person with autism ranging from $1.4 million to $2.4 million, according to an advocacy and research group. Lifetime costs are similar for people affected by other severe impairments.

While government benefit programs provide some assistance, the eligibility rules vary depending on when a disability is incurred. There’s a set of rules for people disabled as children (prior to age 22) and another for those disabled at older ages. Here some key topics for consideration and action:

The care plan should include the safety of the child, along with aspects of life fulfillment, including work, learning and play.

Projected cash flow needs will depend on the type of disability, capability of the individual needing care and the level of care needed.

Investment allocations. Families who have a child with special-needs should be more conservative in how they allocate their retirement portfolios, and maintain a higher level of cash.

Government benefits include Social Security, Medicare and Medicaid.

Families need to understand all of the government rules on asset and income limits for a person with disabilities.

A Special Needs Trust is a critical part of a family retirement plan.

Beneficiary designations must be structured properly, because inheritances can jeopardize government benefits eligibility.

Parents are advised to create a document that offers details of the specific needs and wants of the family member, so that his or her guardian will have as much information as possible when the parents are no longer present. Everyone in the family needs to be educated and prepared. A special needs attorney will be able to guide the family through the planning process.

01/27/2017

How much Americans pay for elder care may be surprising, but there are sources that can help. Another surprise: millennials spend the largest percentage of their income on caregiving. Is it because their income is that much less, or are they more generous?

According to a recent CBS MoneyWatch article, “How to ease the pain of paying for elder care,” the cost of caregiving for parents, spouses or partners is shared by members of all generations, although the percentages vary. Baby Boomers spend 13% of their annual income on unpaid caregiving, and members of the Silent Generation, ages 71 to 91, spend about 25%, mostly on spouses or partners. The GenXers—ages 35 to 50—spend about 24% of their annual income on caregiving for parents, and millennials (ages 18 to 34) spend the largest percentage, at 27%. If you thought that millennials were still living off of their parents, it’s time to change that stereotype!

To address the impact that this cost has on the household, have a family meeting to assess your family’s financial and aging status and to plan for what may be required throughout the year. These types of discussions can help you plan for future elder care expenses in order to place them into a budget, along with your own retirement savings and savings for children’s education.

One source: ease the financial burden of caring for a loved one by investigating government programs. Many advocates are currently anticipating coming legislation that will aid family caregivers. State and local governments may also offer tax breaks and other aid programs for seniors, particularly those individuals needing home renovations to stay in their homes. Those tasked with caregiving should also look into neighborhood religious and community groups for support. There may be senior- and disabled-specific funding programs, along with able-bodied volunteers who can help lighten the load.

Depending on the family’s financial situation, including time constraints due to work schedules, it might make sense to look into professional help. An elder law attorney should be able to recommend an aging life-care professionals (formerly known as “geriatric care managers”) who will be able to help the family delve into elder care resources, including financial help. These professionals are usually social workers, gerontologists or other health care professionals with a focus on helping the elderly. They will be able to help you and your family plan for medical emergencies. Your elder care attorney will also work with your family to make sure that important documents, including power of attorney, health care proxies and other important documents are in place. Doing the planning in advance of an emergency is advised, since you will have more options and avenues of assistance.

01/24/2017

It’s easy to talk with loved ones about happy events, but conversations about your end of life wishes are more important than you might think. Consider the arguments and hurt feelings that could be avoided, if your loved ones know exactly what you want, and why.

While most of our lives pass with only minor incidents, as we age the likelihood of being struck by a serious illness or having an accident increases. This means that our loved ones may face the difficult decisions that come with a parent’s passing. Making sure that your family members know what your end-of-life preferences are and discussing your wishes, along with putting an estate plan into place, can ease everyone’s mind and make a difficult situation a little less stressful.

The website seniorhomes.com recently posted an article, “10 Steps to Communicate Your End-of-Life Wishes.” According to the article, the most important question when it comes to communicating end-of-life wishes might be, “how to do it?” Luckily there are actions you can take to make the process easier for you and your family. Get going now, before it’s too late … and make it a priority.

Planning. There’s no better time than the present to let your family know about your final wishes. Start by drawing up a living will that states your treatment and care preferences in the event you are unable to speak for yourself. You should also sign a durable power of attorney that appoints one or more family members or trusted friends to make medical decisions for you if you become incapacitated. Get that paperwork started today.

Clarity. It’s not pleasant to dwell on becoming too ill to make healthcare and other important decisions, but a critical injury or debilitating illness can occur at any time. As a result, it’s vital to be clear about your wishes as soon as possible—just in case.

Opportunity. Finding the appropriate time to discuss end-of-life issues can be tough, but there are certain events may give you the opportunity to do so. Possible occasions include those related to milestones like the birth of a child, marriage, death or serious illness of a loved one, retirement, an anniversary, during holiday gatherings, or when you create your will or other estate planning. Hopefully, you will have this conversation before an injury or a major illness that requires you or another family member to move out of the home and into a long-term care setting.

Discussions. Have these end-of-life conversations early to make certain that everyone understands your wishes. Your preferences may also change over time and necessitate future discussions on the subject.

Permission. Ask your loved ones for permission before launching into the topic. This will reassure them that you respect and honor their wishes.

Purpose. Your conversations with family need to include two important goals: (i) to be sure your financial and healthcare wishes are expressed and honored; and (ii) to give them the information and confidence they need to make future decisions.

Setting. Have the talk in a quiet and comfortable setting, such as a private spot without distractions. Be mindful of your state of mind and that of other family members.

Listening. Whatever your role in discussing end-of-life wishes, it’s important to listen carefully. Be certain that you hear and understand what your loved ones are saying.

Who participates in this conversation? Be aware that a loved one may want to talk about end-of-life wishes in private.

Pace. If you’re listening to a loved one express their wishes, led them set the pace and don’t argue about their wishes. They may not be your wishes, and they may not make sense to you, but these are their choices.

A respectful and thoughtful mindset will be needed, both by the person who is conveying their end-of-life wishes and family members. If for some reason, the conversation is not going well, you may find that an estate planning attorney can provide further pointers on how to help move the discussion along.

In some instances, it can be an impatience to inherit or having a sense of entitlement because their care of the parent can justify their accessing funds to which they feel entitled. This could involve frequent dinners out, filling up the gas tank, or paid vacations for all their help … and typically the rest of the family has no idea that it’s happening. It’s not uncommon to have a sibling who cares for the senior parents end up feeling entitled to a tropical vacation, a new car, or a down payment on a house on the parents’ tab, while the other siblings are unaware that this is happening to their parents.

Many state laws aren’t sufficient to protect elders in these types of situations. Currently, investigations go nowhere because, in many cases involving familial elderly abuse, it’s one person’s word against the other. Therefore, what can a person do to protect a senior when the adult children have reasonable explanations for money spent or money that’s needed?

With rates of elderly abuse running this high, specifically financial abuse, seniors are advised to develop a financial plan with a trusted person, so that more than one adult child or one adult child and spouse are involved with their financial situation.

Estate planning and elder law attorneys can help with planning and strategies to prepare for these financial possibilities in a family. Financial and estate planning can provide answers to questions about how bills will be paid if the person becomes incapacitated, and address potential feelings of entitlement as well as the potential for discord among children.

These are admittedly tough topics and some families will no doubt encounter challenges when taking the bull by the horns, but it is better to get these issues out in the open and prepare for what may occur.

Preparing for all possible outcomes, from good health to incapacity, will give you peace of mind and lets your children know that you are ready for the eventualities of your later years. Your surviving spouse and family will be stronger for it.

01/06/2017

Scammers focused on elderly targets ramp up their activities during the holiday season, taking advantage of generous holiday spirits.

Florida State University’s College of Criminology and Criminal Justice has completed an in-depth study of elder fraud and how to combat it. What’s unusual is how the study focused on one particular community, which is a highly popular and well-regarded retirement location.

Florida State University News article, “FSU criminology team tackles elder fraud issues,” reported that a 2011 MetLife Market Institute study found some $2.9 billion was exploited from elderly victims, which was a 12% increase from 2008. Experts say the occurrence and impact of elder financial fraud will likely continue to rise. However, there is a dearth of research on the facts, prevention, and policies related to elder financial fraud. This led FSU to begin a study on elder financial fraud in The Villages—one of the largest retirement communities in the nation.

Reviewing reported incident data, arrest statistics, national surveys, focus groups, and interviews, the researchers found that in The Villages, between January 2010 and May 2015, there were 3,735 complaints of elder fraud victimization, but just 265 arrests. The average age of fraud victims was 72, and the average amount lost among the victims was $2,000 per claim. The most frequent cause of fraud was in home services, such as unnecessary repairs.

The researchers also examined other types of fraud The Villages residents were exposed to—like misleading sales and advertisements, investment fraud, embezzlement, sweepstakes scams, fraud by health professionals, identity theft, and forgeries. The report also detailed the methods used to exploit elderly victims and the reasons they were especially vulnerable to each type of fraud.

The researchers found that critical life events, like the death or incapacitation of a spouse, a significant health diagnosis, and moving were the most common precursors for financial exploitation. As a result of victimization, the residents suffered psychological and emotional distress, lessening of their quality of life and health and severe consequences for their financial security.

The researchers also found that retirement communities provided a false sense of security to residents, which heightened the possibility of exploitation among residents.

The FSU team provided specific recommendations to give seniors the tools they need to prevent elder abuse from occurring. These include education, a strong support network and a healthy degree of skepticism. The presence of a community service center that would offer comprehensive services, including a hotline for seniors, a list of endorsed service providers, educational programs and referral services was also recommended.

11/24/2016

Caring for aging parents or an aging spouse requires the ability to advocate on their behalf. Some people find it easier than others, but it can be learned.

We take on many roles when we need to take care of aging family members, from driving them to appointments, managing their schedules, reviewing health insurance coverage, making sure the bills get paid and helping them navigate through health challenges. By necessity, we are also must be prepared to advocate on their behalf during a time when they are vulnerable, as reported by AARP in “How to Be an Effective Advocate for Aging Parents.”

That means knowing what they want for care and quality of life and then making sure those wishes are followed. It also includes helping loved ones manage finances and legal matters, and making certain they receive appropriate and high-quality services and treatments when needed.

Here are a few important skills, many of which you may already possess:

Observation. We’re typically too busy or tired to notice small changes, but sometimes the slightest shift in a loved one’s ability, health, moods, safety or needs is a sign of a larger problem or health challenge. You need to catch those changes early to make a difference. Reviewing the services they’re receiving and adjusting any substandard care is another big responsibility.

Organization. There’s a lot of moving parts in a caregiving plan. Organization is a real challenge. As an advocate, be sure you can easily access all legal documents you need, like power of attorney for finances and health care.

Communication. It’s always an important skill for building relationships, especially with those who help care for your loved ones, like attorneys, aides and doctors. Try to be respectful and set your emotions aside when you are advocating for a loved one. And know that listening is just as important as speaking in effective communication. Be clear, concise and to the point—and show your gratitude.

Questioning. Ask questions! But be prepared and do your job of gathering information. Educate yourself about your loved ones' health conditions and financial or legal matters. Don't stop until you’re satisfied with the answers you receive. Take notes.

Tenacity. As a loved one’s advocate, you must have their best interests at heart and take the job seriously. When caregiving knocks you off your feet, get back up. Resilience is key.

If you are able to find a caregiver’s support group, you will benefit from the help and experience of others who are facing similar challenges. Also, speak with an elder law attorney. After all, what is an elder law attorney but a professional advocate? He or she will have a great deal of experience and insight to share.

11/17/2016

The reporting of exploitation of seniors by a guardianship system that seems to mainly benefit the professional guardians has drawn state-wide attention and hopefully will lead to constructive changes.

A work group focusing on guardianship issues facing Florida’s courts and Florida’s seniors has been established by Florida Chief Justice Jorge Labarga. He noted that removing a person’s rights because they are no longer able to make independent decision is not an easy task for any judge.

The Palm Beach Post, Judge LaBarga’s hometown newspaper, reported extensively on guardianship, particularly how one judge and his wife benefitted. As a result of the coverage, Palm Beach County undertook an overhaul of the system and Circuit Judge Martin Colin announced his retirement. These developments were reported in The Palm Beach Post’s“Supreme Court chief justice tackles senior guardianship as complaints mount.”

Judge Colin’s wife Elizabeth Savitt continues to serve as a professional guardian despite growing complaints by the families of her incapacitated wards. She has taken tens of thousands of dollars from seniors’ bank accounts prior to judicial approval, the Post discovered.

The newspaper contacted numerous guardianship attorneys, all of whom said the state statute does not permit guardians to take fees prior to judicial approval.

The Guardianship Workgroup was established under the Court’s Judicial Management Council, which advises the chief justice and the Supreme Court on long-range issues concerning Florida’s judiciary. Labarga said in a press release that he organized the work group because guardianship caseloads are increasing in both number and complexity. He anticipates that more and more cases dealing with guardianship issues will make their way to court.

Individuals who are judged to be incapacitated by the court are appointed a guardian. If a family member isn’t available, a professional guardian will frequently be appointed and that person will have total control of the person’s finances, medical decisions, and housing. In Florida and in other states, professional guardians have been found to act in their own best interests rather than those of the incapacitated wards. The families of seniors have often been unable to battle professional guardians, who can hire high-powered attorneys paid for by the incapacitated senior.

State lawmakers have passed laws in the last two legislative sessions to increase the state’s regulation and oversight of guardians.

The group has been asked to examine common guardianship issues including restoration of capacity for the individual placed in a guardianship, and fees, which usually mean for the guardian and at least one attorney. The group was asked to provide an interim report to the Court by October 2017, with a final report requested by September 2018.

11/14/2016

In a high-stakes saga that continues to unfold, media mogul Redstone has now filed a lawsuit against the two women who at one time shared his home and allegedly committed financial and emotional elder abuse against the 93 year old. The women have been charged with conspiring to keep Redstone away from his family and friends so that they could gain control of his assets.

A lawsuit filed in Los Angeles Superior Court charges former girlfriends Manuela Herzer and Sydney Holland with emotionally abusing and controlling Sumner Redstone for their own personal gains. The women, who at one time lived in his home, are accused of taking $150 million in cash, expensive jewelry, clothing and real estate. They are also accused of isolating Redstone from family members and friends when they tried to intervene on Redstone’s behalf.

Variety’s article, “Sumner Redstone Sues Two Ex-Companions for $150 Million,” reports that the two allegedly took so much from Redstone, such as matching $45 million checks in a single day in 2014 that he was pushed into debt by the gifts and the enormous taxes that went with them. The lawsuit accuses the two of elder abuse, fraud, breach of fiduciary duty, and infliction of emotional distress.

Holland issued a statement saying Redstone’s attorneys and doctors vetted and approved all payments to her. Herzer’s attorney, Ronald Richards, said the suit “has no merit whatsoever” and turned blame for the dispute on Redstone’s daughter, Shari. He argues that Redstone is trying to detract from Herzer’s legitimate claims that she was improperly disinherited by the billionaire.

The two women, who lived at the media tycoon’s Beverly Park estate in Los Angeles, were tossed out by the billionaire within six weeks of each other in 2015. Redstone discovered that Holland cheated on him and Herzer had blocked him from contact with family and friends, the complaint says. Herzer’s attempt to force her way back into Redstone’s life last year alerted him to his isolated situation and made him try to regain control of his life and affairs, his lawyers said.

All of this resulted in Redstone removing two of his long-time confidants—Viacom CEO Philippe Dauman and Viacom board member George Abrams—from the trust that will eventually determine control of his valuable shares in Viacom and CBS Corp.

The lawsuit claims that the two ladies “terminated his doctors, nurses, household staff, and longtime advisers and brought in handpicked replacements,” adding: “They decided who came and went from the residence. They spoke for Redstone when he lost his ability to vocalize.” Herzer and Holland abused these positions of trust when the tycoon, who’s 93, was most vulnerable—homebound and forced to eat through a feeding tube with a severe speech impediment.

“Herzer and Holland took far more than Redstone’s money,” the suit charges. “They took five of the last years of his life. They took time away from his children, grandchildren and great-grandchildren. They took his pride and dignity.”

Rather than fighting each other, Herzer and Holland decided to join forces to cut out other rivals, the suit says.

The two schemed to free up large sums that Redstone had tied up in stock options and stock, the suit claims. That plan worked until May 2014, when they persuaded Redstone to sell the stock options and other stock worth about $100 million. “Later that same day, Redstone made two transfers, $45 million each,” the suit says, “to the personal bank accounts of Holland and Herzer.”

The gifts made for a lose-lose situation for Redstone because the gift and generation-skipping taxes triggered from the two transfers had to be paid for with money borrowed from his National Amusements holding company, the suit says.

The women seemed to have the entire estate locked down in June 2014, when an amended and restated estate plan was put into place. That began to change when Redstone resumed contact with his daughter Shari and grandchildren after being hospitalized. One of his nurses provided a detailed look at how the women had set up a system of control over him. The lawsuit includes pages of emails from the nurse that shows a pattern of manipulation and deceit.